Himachal Pradesh High Court
Pradeep Singh vs State Of H.P on 19 April, 2016
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr. Appeal No. 238 of 2014
Reserved on :4.4.2016
Decided on :19-04-2016
Pradeep Singh .....Appellant.
of
Versus
State of H.P .....Respondent.
Coram rt
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Appellant: Mr. Kulwant Singh Katoch, Advocate.
For the Respondent: Mr. Pankaj Negi, Deputy Advocate General.
_______________________________________________________ Sureshwar Thakur, Judge The instant appeal is directed against the impugned judgment rendered on 17.6.2014, by the learned Special Judge-I, Sirmaur, District at Nahan, H.P., in Sessions trial No. 69-ST/7 of 2013, whereby the learned trial Court convicted and sentenced the appellant (hereinafter referred to as "accused") for his committing offences punishable under Sections 18 & 20 1 Whether reporters of the local papers may be allowed to see the judgment?
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of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for shot .
"the Act"), as follows:-
Under Section 18 of the Act: To undergo rigorous imprisonment for five years alongwith fine of Rs. 30,000/- and in default of payment of fine, he shall further undergo simple of imprisonment for six months.
Under Section 20 of the Act:
rt To further undergo rigorous imprisonment for five years alongwith fine of Rs. 50,000/- and default of payment of fine, he shall undergo simple imprisonment for six months.
2. Brief facts of the case are that on 24.9.2013, SI Yashwant Singh alongwith HC Madan Gopal and HC Manish left CID Headquarters at 9.30 a.m. for reconnoitering after entry of Rapat Ex.PW-10/A. The aforesaid officials visited to the police Station, State CID fromwhere HC Govind Ram, LHC Ashok, C. Suresh, LC Sita Devi and LC Kusum were joined. A secret information at Giripul Gaura road was received by them. On receipt of the information two independent witnesses Sandeep Kumar and Lekh Ram were joined. The accused was found to be present in his shop and the raiding party disclosed to him their intention to conduct search of his hotel, shop and ::: Downloaded on - 15/04/2017 20:08:22 :::HCHP ...3...
residential room. Thereafter personal search of the accused and search .
of Dhaba were conducted however no incriminating article was recovered during his search. On search of the residential room of the back side of the building a steel almirah was found therein. Thereafter the accused provided the keys of the steel almirah. The same was of opened and two polythene envelops containing charas and opium were recovered from it. After weighing charas was found to be 1 kg and rt opium was found to be 950 grams, respectively. After completing all codal formalities and on conclusion of the investigation into the offence, allegedly committed by the accused challan was prepared and filed in the Court.
The accused stood charged by the learned trial Court for his
3. committing offences punishable under Sections 18 & 20 of the Act to which he pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution examined 14 witnesses. On closure of prosecution evidence, the statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded in which he pleaded innocence and claimed false implication.
He did not choose to lead any evidence in defence.
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5. On an appraisal of the evidence on record, the learned trial .
Court returned findings of conviction against the accused for his committing offences punishable under Sections 18 & 20 of the Act.
6. The learned counsel appearing for the appellant/accused has concertedly and vigorously contended qua the findings of conviction of recorded by the learned trial Court standing not based on a proper appreciation of evidence on record, rather, theirs standing sequelled by rt gross mis-appreciation of material on record. Hence, he contends qua the findings of conviction being reversed by this Court in the exercise of its appellate jurisdiction and theirs being replaced by findings of acquittal.
7. The learned Deputy Advocate General has with considerable force and vigour contended qua the findings of conviction, recorded by the Court below standing based on a mature and balanced appreciation of evidence on record and theirs not necessitating interference, rather meriting vindication.
8. This Court with the able assistance of the learned counsel on either side has with studied care and incision, evaluated the entire evidence on record.
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9. Opium weighing 950 grams and Charas weighing 1 Kg. stood .
recovered from the purported exclusive possession of the accused from a steel almirah kept in a room purportedly standing occupied by the accused as a tenant under PW-8. The prosecution was under a solemn legal obligation to adduce conclusive proof qua the room disclosed in of the site plan whereat a steel almirah stood kept wherefrom the aforesaid items of contraband stood recovered, standing occupied by the accused rt as a tenant under PW-8. The best evidence in the aforesaid regard would have stood underscored by PW-8 Inder Singh. However PW-8 the landlord of the accused/appellant in his deposition on oath has underlined therein of his letting out to the accused one hotel Room, karyana shop and one store. He has been open, candid and categorical in his deposition comprised in his examination-in-chief of his not letting out to the accused/appellant any premises other than the ones aforesaid.
Contrarily, he has disclosed therein of his not letting out to the accused a room denoted in the site plan wherefrom from an almirah kept thereat items of contraband stood recovered rather it standing let out by him to one Ram Bahadur who has been deposed by him to be absconding since the date of occurrence. The aforesaid deposition of PW-8 with a disclosure therein of his not letting out to the accused/appellant the ::: Downloaded on - 15/04/2017 20:08:22 :::HCHP ...6...
room denoted in the site plan whereat a steel almirah was kept .
wherefrom contraband stood recovered is a palpable display of the prosecution failing to establish besides omitting to lend clinching proof of the room denoted in the site plan whereat the steel almirah was kept wherefrom the contraband stood recovered, being under the occupation of of the accused as a tenant under PW-8.
10. A sharp and marked boost to the aforesaid inference is garnered rt by the factum of PW-13, SI Yashwant Singh divulging in his deposition comprised in his cross-examination of the rent agreement executed inter-se PW-8 and the accused not containing any recitals of PW-8 letting out to the accused the room denoted in the site plan whereat a steel almirah was kept wherefrom the items of contraband stood recovered. In sequel, an apt deduction which is not be formed is of the room denoted in the site plan whereat an almirah was kept wherefrom the items of contraband stood recovered stood not occupied by the accused as a tenant under PW-8.
Conseqeuntly, the endeavor of the prosecution to prove the factum of the accused/appellant holding possession as a tenant under PW-8 of the room denoted in the site plan stands belied.
11. Be that as it may, it was also incumbent upon the prosecution to prove the factum of the steel almirah kept in the room denoted in the site ::: Downloaded on - 15/04/2017 20:08:22 :::HCHP ...7...
plan standing in the exclusive possession of the accused constituted by .
clinching evidence in portrayal of the keys as deposed by the official witnesses to stand delivered by the accused to the Investigating Officer for facilitating its being opened by the latter for retrieving therefrom the items of contraband kept inside it standing hence unflinchingly proved to be of handed over by the accused to the Investigating Officer. Firm besides best evidence of keys deposed by the official witnesses to stand purportedly rt handed over by the accused to the Investigating Officer stood constituted in theirs standing recovered under an apposite memo prepared by the Investigating Officer. However, with PW-13 in his deposition comprised in his cross-examination conceding therein of his omitting to mention in the seizure memo the prime factum of the keys standing produced by the accused besides his also disclosing therein of his omitting to mention the said fact in the rukka and in the statements of the witnesses, fillips an inference of the Investigating Officer suo moto without user of keys opening the steel almirah whereupon he proceeded to portray in the seizure memo of items of contraband standing recovered therefrom at the instance of the accused. The aforesaid inference of the PW-13 suo moto opening the steel almirah lying in the room denoted in the site plan gathers momentum from the factum of PW-8 its landlord deposing of the lock of ::: Downloaded on - 15/04/2017 20:08:22 :::HCHP ...8...
the almirah being not in a working order. Consequently, the factum of .
the accused holding exclusive possession of the steel almirah kept inside the room denoted in the site plan stands un-established. A further ensuing deduction from the inference aforesaid is of the Investigating Officer rearing a false story qua his opening the steel almirah kept in the room of denoted in the site plan on production of its keys at the instance of the accused besides also concomitantly belies the factum of his hence rt recovering there-from the items of contraband as stand attributed by him to purportedly stand recovered at the instance of the accused rather rears a deduction of theirs standing recovered in a manner other than the one portrayed in the genesis of the prosecution case. In aftermath, this court concludes with aplomb of the prosecution rearing and inventing a false story qua the genesis of the occurrence.
12. The effect of the depositions of the purported independent witnesses to the recovery of items of contraband purportedly recovered from the exclusive and conscious possession of the accused cannot be undermined especially when they omit to lend support qua the factum of the Investigating Officer recovering in their presence from a steel almirah kept inside the room denoted in the site plan, the items of contraband recited in the apposite recovery memo. Their omission to lend support to ::: Downloaded on - 15/04/2017 20:08:22 :::HCHP ...9...
the depositions of the official witnesses besides to the prosecution case .
underpins a deduction of the prosecution omitting to lend proof qua the aforesaid items of contraband purportedly attributed by it to in the manner espoused by it to stand recovered at the instance of the accused by the Investigating Officer rather their recovery standing engendered in a manner of other than the one unveiled in their depositions on oath.
13. Be that as it may, it was also incumbent upon the rt prosecution to fortifyingly establish the factum probandum in as much as the case property produced before the trial Court being linkable to its recovery standing effectuated from the alleged conscious and exclusive possession of the accused in the manner espoused by the prosecution.
The germane besides apt material for forming a conclusion qua the case property as produced in Court being linkable to the apposite stage of its recovery from the alleged conscious and exclusive possession of the accused in the manner propagated by the prosecution, stood embedded in the apposite descriptive entries qua it, recorded in the Malkhana register of the police station concerned. Imperatively at the stage contemporaneous to its production in Court by the learned PP for its being shown to the PWs No.1 and 13 (a) the former was enjoined to produce in Court either the abstract of the malkhana register personificatory of narrations or ::: Downloaded on - 15/04/2017 20:08:22 :::HCHP ...10...
descriptions compatible or congruous to the one borne on seizure memo .
Ex.PW-1/C as shown to the prosecution witnesses (b) or he was obliged to elicit from the PWs aforesaid to whom the case property stood shown in Court by him communications portraying the factum of it being carried by them on its being handed over to them by an authorized official after its of retrieval by the latter from the Malkhana concerned whereupon it stood handed over by them to the learned PP for facilitating on its production by rt him in Court emanation of apposite elicitations from them unveiling the factum of it being the case property as attributed by the prosecution to the accused (c) even in the face of the aforesaid omission the learned PP at the time of production of case property in Court, for its being shown to the PWs aforesaid for theirs deposing qua it being the very same property as stood recovered from the alleged conscious and exclusive possession of the accused in the manner as propagated by the prosecution to yet gain muscle was obliged to on its production in Court by him besides prior to its being shown to the PWs No. 1 and 13 communicate before it the factum of his having received it from an empowered official after its retrieval by the latter from the Malkhana concerned.
14. However, a close and circumspect reading of the testimonies of PW-1 and PW-13 to whom the case property was shown on its production ::: Downloaded on - 15/04/2017 20:08:22 :::HCHP ...11...
in Court by the learned PP omits to unfold (a) the factum of either at the .
stage contemporaneous to its production in Court by the learned PP for its being shown to the PWs aforesaid he divulged to the trial Court the factum of his having received it from an authorized officer on its retrieval by the latter from the Malkhana concerned (b) nor is there any emanation in the of deposition of both PWs aforesaid of theirs having received it from an authorized official on its retrieval by the latter from the malkhana rt concerned, (c) besides there is no communication by both in their recorded depositions on oath of theirs carrying with them at the time of recording their depositions in court during course whereof the learned PP showed them the case property, the relevant abstract of the malkhana register wherefrom compatibility intra-se descriptions or narrations borne thereon on its comparison with the abstract of the malkhana register could stand either disinterred or fathomed, for as a corollary facilitating this Court to render a conclusion of the case property as produced in Court being the one as stood recovered from the conscious and exclusive possession of the accused.
15. The summom bonum of the above discussion is of the omissions aforesaid countervailing the propagation of the prosecution of case property produced in Court by the learned PP for its being shown to PWs ::: Downloaded on - 15/04/2017 20:08:22 :::HCHP ...12...
being relatable to the contraband recovered from the alleged conscious and .
exclusive possession of the accused under memo Ex. PW-1/C. The crux of the above discussion is of the prosecution having not adduced cogent and emphatic evidence in proving the guilt of the accused. The appreciation of the evidence as done by the learned trial Court suffers from of an infirmity as well as perversity. Consequently, reinforcingly, it can be formidably concluded, that, the findings of the learned trial Court merit rt interference.
16. In view of above discussion, the appeal is allowed and the impugned judgment of 17.6.2014, rendered by the learned Special Judge-I, Sirmaur, District at Nahan, H.P, is set aside. The accused is acquitted of the offence charged. The fine amount, if any, deposited by the accused is ordered to be refunded to him. Since the accused is in jail, he be released forthwith, if not required in any other case.
17. The registry is directed to prepare the release warrant of the accused and send the same to the Superintendent of the jail concerned, in conformity with this judgment forthwith. Records be sent down forthwith.
19th April, 2016. (Sureshwar Thakur)
(priti) Judge
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